What are reverse sensitivity effects?
Reverse sensitivity involves the vulnerability of an existing activity to legal attack from newly located activities that are adjacent and which are incompatible. Reverse sensitivity is especially relevant to noise issues. Section 16 RMA provides that every person carrying out an activity has a duty to avoid unreasonable noise. As with the common law, ‘coming to the nuisance’ is no defence to enforcement action based on section 16 RMA. Reverse sensitivity effects often arise for infrastructure providers such as airports and ports, but these effects can be faced by other industries e.g. farming operations fearing the impact of lifestyle lots, or nightclubs or pubs with surrounding residential use.
How to protect against reverse sensitivity effects.
Strategies for dealing with reverse sensitivity effects include:
- Protecting the existing activity through rules in district plans.
- Requiring the new activity enter into a “no complaints” covenant via a land encumbrance.
If an existing industry is likely to be affected by a sensitive adjacent activity which established by the grant of non-notified resource consent, it may be necessary for the existing industry to consider challenging the grant of resource consent by judicial review proceedings. This assumes that reverse sensitivity effects to the existing industry were not taken into account by the local authority who granted consent.